In Parts One, Two and Three we dealt with external aspects of the Muslim fast in the month of Ramadhan. In this concluding part we will discuss the spiritual and health issues connected with the Fast.
On Whom is the Fast Compulsory?
The Ramadhan fast is one of the five pillars upon which the religion of Islam stands. It is compulsory upon all those who opt to profess the religion of Islam to observe these five pillars. The five pillars as stated by the Holy Prophet (Sal) is as follows:
On the authority of Abu ‘Abd al-Rahman ‘Abdullah bin ‘Umar bin al-Khattab, radiyallahu ‘anhuma, who said: I heard the Messenger of Allah, sallallahu ‘alayhi wasallam, say:
“Islam has been built upon five things – on testifying that there is no god save Allah, and that Muhammad is His Messenger; on performing salah; on giving the zakah; on Hajj to the House; and on fasting during Ramadhan.” (Bukhary & Muslim).
There is no distinction as to the merits of any one over the other. Every one of them is as meritorious and important as the other and refusing to accept them as such would amount to hypocrisy or even lead to apostasy.
Fasting is compulsory upon every Muslim, male and female who is of sound mind (‘Aqil), from the time they attain the age of puberty (Baligh) upto the time when death approaches. Scholars have explained that all the subsequent four pillars after declaration of the faith are required to be observed upto the time when the last drop of water poured into ones mouth when death approaches fails to be swallowed or go down the throat. In an authentic Hadith recorded by Ahmad and Abu Dawud , the Prophet (Sal) is reported to have said “The pen is lifted from three (persons): the insane person until he regains his intellect, the sleeping person until he awakens and the child until he reaches the age of puberty”.
Having established on whom the fast is compulsory let us examine the compensatory nature of the All Wise, All Merciful Allah’s concession upon those who are ill or might have difficulty in observing the fast for one reason or another. As Allah says:
“(Fasting) for a fixed number of days, but if any of you is ill or on a journey, the same number (should be made up) from other days. And as for those who can fast with difficulty, (i.e. an old man, etc.), they have (a choice either to fast or) to feed a poor person (for every day). But whoever does good of his own accord, it is better for him. And that you fast, it is better for you if only you know.” (2:183-84)
“The month of Ramadan in which was revealed the Quran, a guidance for mankind and clear proofs for the guidance and the criterion (between right and wrong). So whoever of you sights (the crescent on the first night of) the month (of Ramadan), he must fast that month, and whoever is ill or on a journey, the same number (of days which one did not fast must be made up) from other days.
Allah intends for you ease, and He does not want to make things difficult for you. (He wants that you) must complete the same number (of days), and that you must magnify Allah for having guided you so that you may be grateful to Him” (2: 185)”.
Allah in His absolute wisdom Has classified the people into four groups as follows:
Those who are fit and able and not undertaking a journey,
- Those who are ill
- Those who have undertaken a journey
- Those who can fast but have difficulty in observing the fast such as an old person or a weak person.
There is no excuse for those who are fit and able and are in their own home towns from missing out the fast. They have to observe it in the same manner as observing the daily prayers.
Abu Huraira related that Rasulullah said: “If anyone omits his fast even for one day in Ramadan without a concession or without being ill, then if he were to fast for the rest of his life he could not make up for it” (Bukhari).
People who are ill but recovers after a few days in Ramadhan or after Ramadhan
A person who is ill for a certain period of time during the period of Ramadhan fast, including those menstruating women or women during their post natal bleeding are not required to fast. But they must make up the missed days of the fast when they get better or in the case of the menstruating woman or the one while in post natal bleeding, when they become clean. The missed periods must be made up before the commencement of the next years Ramadhan. There is a great distinction between the missed fasts and missed prayers for women during their menstrual periods or post natal bleeding. While it is not necessary for them to make up the missed prayers, they are required to make up the missed fasts. There is great wisdom behind this logic. A missed prayer is from the daily prayer and it is gone for ever. There is no way that it could be compensated for but a missed fast can be made up before the next years fast.
People who are terminally ill
People who are terminally ill and cannot fast even with difficulty, they are exempt. But they have to feed a poor person as compensation as stated by Allah “And as for those who can fast with difficulty, they have to feed a poor person as compensation (Quran 2:184). Scholars are of the opinion that the amount of food to be given in compensation is one Mudd of foodstuff, which is a handful. In today’s context it has been stated as 2.5 kilograms of rice for Sri Lanka for each day of the missed fast.
If a person under the obligation to fast takes a journey according to some scholars of a distance of forty – eight miles or more, he or she is allowed to break his fast, on condition that he or she makes up the broken or missed Fast when he or she returns to his or her homeland. If fasting during travel is not difficult for the traveller, then fasting would be better for them.
Aisha related that Rasulullah was asked whether one should fast when on a journey, and he replied: Fast if you like, or postpone it if you like (Bukhari, Muslim).
Abu Said Al Khudri (RA) said that “We used to travel for war expeditions with the Messenger of Allah (Sal) during Ramadhan. So some of us would fast and some of us would not fast, and the fasting person would not be angry with the one who was not fasting, and the person who was not fasting would not be angry with the one who was fasting. Then they thought that the person who had the strength would fast and that was good. And they thought that the person who felt weak would not fast and that was good”. (Muslim)
The Elderly People
For those Muslims who have reached extreme old age, at which that they do not have the strength to fast, they may break the fast and compensate by giving charity for every day that they missed the fast, by giving a Mudd of foodstuff . Ibn Abbas (RA) said “It was permitted for the very elderly man (or woman) to feed a poor person for every day (that he or she did not fast), and he (or she) did not have to make up for the days (missed)”. (Ad-Daraqutni and Al-Hakim)
The Pregnant and Breast – feeding Woman
Pregnant and breast-feeding women can defer their fasting until they return to a condition that that they are able to continue the fasting and then make up for the missed Ramadhan fasts by fasting on other days. Scholars are of the opinion that if such a woman is wealthy it would be act of reward for her to give one Mudd of foodstuff along with her missed fasts
Making up for missed fasts
It is important to understand that there are strict conditions as regards making up for missed fasts as follows:
- Whoever delays in making up for the missed fasting of Ramadhan without an excuse until the next Ramadhan comes upon that person, the he or she must feed a poor person for each day that he or she must make up the fasting.
- Whoever dies having fasts to make up, his responsible heir must make up for missed fasting on behalf of that person as the Prophet (Sal) said “man maatha wa alaihi siyamun Saama anhu waleeyuhu”, translated means “whoever died while having fasting due upon him, his responsible heir fasts on his behalf”. (Al-Bukhari and Muslim). In another occasion a man inquired from the Prophet (Sal) “verily my mother died and she owed a month’s fasting that she did not make. Should I make up for the fasting on her behalf?” The Prophet (Sal) replied “na’am, fadaiNullahi ahaqqun an yuqla’a” translated means “Yes, the debt owed to Allah has more right to be made up”. (Al-Bukhari and Muslim).
Expiation for a “Broken” Fast
Fasting in expiation should not be confused with fasting for making up the fast due to the foregoing reasons. Expiation denotes to that which atones for a sin resulting from committing an act forbidden during fasting. If someone has had sexual relations with one’s spouse during the daytime while fasting in Ramadhan, or eats or drinks intentionally, it amounts to disobedience with the laws of fasting. Therefore, it becomes obligatory upon such a person to make an expiation for so doing. There are three ways by which he can do the expiation as follows:
- By freeing a believing slave,
- Fast two consecutive months
- Feed sixty people, giving each poor person one Mudd of wheat, barley or dried dates according to whatever he or she can give.
In support of the above, scholars cite the following Hadith:
Narrated by Abu Huraira is as follows:
“A person came to our master the Prophet and said, ‘O the Messenger of Allah, I am ruined.’ Our master the Prophet asked what happened. He said that he had broken the Ramadan fast intentionally. Our master the Prophet told him to free a slave. When he said that he had no slave, he ordered him to fast for two months incessantly. When he said that he was unable to do so, he told him to feed poor people.” (Al-Bukhari, and Muslim).
In another Hadith reported by Al-Bukhari and Muslim, Abu Hurayrah (RA) narrated that “A man came to the Messenger of Allah (Sal) ‘I am destroyed, O Messenger of Allah’ the Prophet (Sal) inquired ‘what has destroyed you?’ and the man replied ‘I had sex with my wife during Ramadhan’ the Prophet (Sal) inquired ‘do you have a slave that you can free’, ‘No’, replied the man, the Prophet then inquired ‘are you able to fast two consecutive months?’ ‘No’ replied the man, ‘Do you have enough to feed sixty poor people?’ inquired the Prophet (Sal) further. ‘No’ said the man and sat down. At that time a basket of dates was brought to the Prophet (Sal) and he said ‘take this and give it in charity’ the man replied ‘shall I give it to someone poorer than us, for I swear by Allah, that there is no family between it’s (Madinah’s) two mountains more in need of it than us?’ So the Prophet (Sal) laughed until his molar teeth became visible and he said ‘go and feed your family with it’”
Matters that Nullify the Fast
A strict code of conduct is required to be observed by the person who is fasting. The following matters will nullify the fast requiring the person to treat such as fast as missed compensate as stated before:
- A fluid substance reaching the inside of the body by means of the nose (like snuff), or by way of the eye or ear (like drops) or by way of the rectum or the vagina of the woman, like an injection with a syringe.
- Whatever reaches the inside of the body due to exaggerating in rinsing the mouth, inhaling and exhaling water from the nose during ablution or otherwise.
- The excretion of semen due to staring at someone or something that incites sexual lusts or prolonged thinking about sexual desires or kissing or touching.
- Intentional vomiting
Permissible Acts that a fasting person can do
It is not expected of a fasting person to a life of seclusion and hermitage The following are acts that are permissible for a fasting person to do:
- Cleaning the teeth with Miswak.
- Cooling oneself by pouring water over his body or by emersion in water due to extreme heat.
- Travelling for a permissible need, even if he knows that his journey will compel him to break his fast.
- Treating illness by injection as long as it is not for nourishment
- Using perfume and incense.
Excusable Acts for the fasting person
There are certain acts that happen naturally which is beyond the control of the fasting person these are excusable acts that do not break or nullify the fast:
- Swallowing the persons own saliva.
- Unintentional vomiting like the one that comes with belching, as long as none of it returns to the fasting persons stomach
- Accidentally swallowing a fly
- Unavoidable swallowing of dust, smoke and the like
- Waking up in the morning sexually defiled. Bathing and cleansing will be required for prayer, but the fast will neither be broken nor made void.
- Wet dreams. They require the person to bathe and cleanse himself for prayers but the fast is not broken or voided.
- Eating and drinking accidentally or through forgetfulness. This is supported by the Hadith of the Prophet (Sal) reported in Al-Bukhari and Muslim that “whoever forgets while he is fasting and he eats or drinks, then let him complete his fast. For it was only Allah who fed him and gave him drink” Also in another authentic Hadith reported by Ad-Daraquni the Prophet (Sal) is reported to have said “Whoever breaks his fast during Ramadhan due to forgetfulness, then he does not have to make up for that day, nor make an expiation”.
Benefits of Fasting
For a Muslim the mere fact that it has been ordained by Allah the Almighty is sufficient to comply with irrespective of the benefits. However, Allah in His Most Ultimate Wisdom, has promised the dutiful fasting person His absolute Mercy and Blessing (Rahma) during the first ten days and for those who completed the first ten days with reverence and a higher plane of piety (Maghfirah) during the second ten days and finally for those who observed the first twenty days of the Ramadhan fast protection from Hell and He has promised for those who attained the benefits of the night of Qadr (Lailathul Qadr) the fulfilment of the worshippers supplications. The Prophet (Sal) has advised Muslims to seek the night of Qadr in the last ten days of Ramadhan. Furthermore, for those who successfully completed the Ramadhan “workshop” and attained the status of Muttaquun – piety, the Quran which they read during the day and the night will be the absolute guide as stated by Allah
“Alif Laam Meem, This is the Boot, in it is guidance sure, without doubt to those who fear Allah, Who believe in the unseen, are steadfast in prayer, and spend out of what We have provided for them and who believe in the Revelation sent to thee and sent before thy time, and (in their breasts) have the assurance of the Hereafter. They are on true (guidance), from their Lord, and it is these who will prosper” (Al-Quran 2:1-5).
In conclusion I supplicate to Allah to forgive the sins of all those Muslims who undertook the fast, and those who observed the fast although with difficulty and those who were unable to fast due to whatever reason and May Allah accept all our good deeds and Fidya in compensation by those who were unable to fast and supplications made during this month of Ramadhan, the month of Mercy.
In Parts One and Two (CDN 6th and 13th July, 2013) we dealt with the details regarding the commencement conclusion of the Ramadhan Fast and the controversies about sighting the moon for the beginning and ending the month of fasting. We will discuss in this part the recommended Usulsconcerning the compulsory fast.
Unity in beginning and ending the fast.
Whatever the method adopted to start and end the fast must be the consensus of a body of responsible Muslims. We do not have Caliphs anymore and Saudi Arabia does not represent the global Muslim Community. Therefore as stated in Part two, the fasting should commence by sighting the moon (which incidentally is a fool-proof method where astronomical calculations can go severely wrong) or completing the month of thirty days. Hence, the fast cannot be twenty nine days for some and thirty days for others. Whether one follows the Nujoomi calendar irrespective of the appearance of the moon or commence by sighting the moon or by calculation, the beloved Prophet (Sal) has advocated in an authentic Hadith in Thirmadhee, that in a community all must commence the fast on one single day and conclude the fast similarly by consensus.
“As-Sawmu yawma thasoomoon, wal Fithru yawma Thufthiroon, Wal Adha yawma Thudhahhoon” – (Thirmadhee and Ibn Majah) – translated means “The fast is the day that all of you fast, the end of the fast is when all of you stop fasting, and the sacrifice is the day that all of you perform the sacrifice (of animals).
Thus it is abundantly clear that there is no room for one group of Muslims to commence and end the fast on one day different to the majority or without consensus. Also there are no authorities in the Quran or in the divinely inspired Ahadith promoting or advocating such division. Some misguided Muslims in Sri Lanka even go to the extent of pre-empting the ending of the fast well before its commencement to book halls or areas for conducting the Eid prayers as if in competition. Such action amounts to rebellion against Allah’s command in Surah Al-Imran verse 103 – which states…
“Hold fast to the rope of Allah and do not be divided”.
The Essentials of the Compulsory Fast
1. The intention (An-Niyyah)
It is a practice particularly in Sri Lanka that the Imam reminds the congregation behind him, after concluding the Tharaveeh and Witr prayers, of a recitation denoting the intention to observe the fast next day. This has continued for a number of years and is as yet practiced in Sri Lankan Mosques. There are however, a group of people who object to this as an innovation, claiming that the mere fact that the Muslim person wakes up for observing the fast the next morning amounts to his or her intention. Without casting any judgement on the validity or the rights and wrongs of the practice of declaring the intention by the Imam after prayers for the congregation, it is certainly necessary to keep the intention for fasting the next day during the previous night. The Prophet (Sal) said that “Deeds are judged by their intentions” (Bukhari) and on this basis the Prophet (Sal) declared that if the fast is an obligatory fast then the intention must be made during the previous night, before Fajr time. This is based on the an authentic Hadith reported in Thirmithi as follows:
“Man lam yubayyathis Siyama min allaili fala Siyama lhu”, translated means “One who does not plan (intend) to fast during the night, there is no fast for him”
The Usul regarding intention for a non–compulsory fast is different and is not dealt with here.
2. Az-Zaman (The Time)
Although people undertake fasting for various reasons from fulfilling vows to health reasons, fasting during Ramadhan is different. It is one of the five pillars in Islam governed by a strict code of conduct to be adhered during the period of fasting. The first of this code of conduct is to observe the fast between certain times. The Quran does not define that it has to be from the time of declaration of the call for Fajr prayers to the declaration of the call for Maghrib prayers. The Quran gives broad guidelines as benchmarks for the times between which the compulsory fast must be observed as follows:
“…and eat and drink until the white thread (light) of dawn appears to you distinct from the black thread (darkness of night), then complete your fast till the nightfall…” (Quran 2:187).
Using the guidelines given by Allah, the Prophet (Sal) established the times as the beginning of the Fajr prayers as reported by Bukhari and Muslim in an authentic Hadith from Zayd Ibn Thabit (RA) as follows: “We used to take the Suhur meal with the Messenger of Allah (Sal). Then he would stand and offer the prayer (Salat-ul-Fajr)” I, (the sub-narrator) said, ‘How much time was between the Azan (for Salat-ul-Fajr) and the Suhur? He (Zayd) said, the amount (of time) for fifty verses (of Quran) to be recited”.
In another Hadith reported in Bukhari, the Prophet (Sal) said eat and drink until you hear the call for prayer from Ibn Makhthum (RA) after the call for the Fajr prayer from Bilal (RA).
The pre-dawn breakfast (Suhur), and the evening breakfast (Ifthar) are important events in the observance of the Ramadhan Fast. The Prophet (Sal) is reported by Muslim as having said “verily that which separates (i.e, distinguishes) between our fast and the fasting of the People of the Book (i.e, Iews and Christians) is eating before dawn (Suhur). In another Hadith reported by Bukhari and Muslim, the Prophet (Sal) is reported to have said “Eat the meal for Sahur for verily in the Sahur there are blessings”. To conclude this section we will cite another Hadith from Ahmad which states “My Ummah (nation of followers) will not cease being upon goodness as long as they hasten in breaking the fast and delay the Sahur (pre dawn meal).”
3. Al-Imsak (Refraining)
Fasting in Islam is a sacred duty. Allah in his absolute wisdom states in the Quran
“O you who believe! Fasting is prescribed for you as it was prescribed for those before you, that you may become Al-Muttaqun (the pious).” (Quran 2:183).
Therefore what is intended by fasting is not mere abstention from food and drink. Acts that are normally permitted during normal days apart from consuming food and drinks, like permitted sexual activity with one’s spouse is taboo during the period one observes the fast. The periods and the limits to which such activities are allowed is clearly prescribed in the Quran as follows:
“It is made lawful for you to have sexual relations with your wives on the night of the fasts. They are garments for you and you are the same for them. Allah knows that you used to deceive yourselves, so He turned to you and forgave you. So now have sexual relations with them and seek that which Allah has ordained for you, and eat and drink until the white thread (light) of dawn appears to you distinct from the black thread (darkness of night), then complete your fast till the nightfall.
And do not have sexual relations with them (your wives) while you are in Itikaf in the mosques. These are the limits (set) by Allah, so approach them not. Thus does Allah make clear His signs to mankind that they may become Al Muttaqun (the pious)” (2:187).
The period of Ramadhan in modern terms can be likened to a “workshop” where the participants are practically trained to become in the language of the Quran Muttaqun – the pious. Thus Allah, the all Merciful, the Almighty acknowledges the weaknesses in His human creations. To become Muttaqun refraining from food and drink and abstaining from sexual activity during the specified period is not sufficient. Abu Huraira related that the Prophet said: “If a person does not avoid false talk and false conduct during Siyam, then Allah does not care if he abstains from food and drink” (Bukhari, Muslim). Thus spreading falsehood backbiting and cheating or robbing people for whatever reason is normally a sin in the sight of Allah. It is therefore even more sinful to commit these acts while fasting. The following Ahadith further stresses the importance and sanctity of the Ramadhan Fast:
“Abu Huraira related that the Prophet (peace and blessings be upon him) said: Whoever fasts during Ramadan with faith and seeking his reward from Allah will have his past sins forgiven. Whoever prays during the nights in Ramadan with faith and seeking his reward from Allah will have his past sins forgiven. And he who passes Lailat al-Qadr in prayer with faith and seeking his reward from Allah will have his past sins forgiven” (Bukhari, Muslim).
“Abu Huraira related that Rasulullah said: If anyone omits his fast even for one day in Ramadan without a concession or without being ill, then if he were to fast for the rest of his life he could not make up for it” (Bukhari).
“Abu Huraira related that Rasulullah said: Many people who fast get nothing from their fast except hunger and thirst, and many people who pray at night get nothing from it except wakefulness” (Darimi).
Thus the Ramadhan “workshop” is intended to condition the faithful towards greater depths of piety from strict observance of the rules of fasting. Fasting unlike other acts cannot be done except to please Allah. Prayers, giving of Zakath and the performance of Haj can be done to show others that the person who so does is a pious person. However, only Allah the Almighty and the person who fasts knows that the person is observing the fast and not stealthily eating while pretending to fast. That is why the Holy Prophet said as related by Abu Hurairah: “Allah the Majestic and Exalted said: “Every deed of man will receive ten to 700 times reward, except Siyam (fasting), for it is for Me and I shall reward it (as I like). There are two occasions of joy for one who fasts: one when he breaks the fast and the other when he will meet his Lord” (Muslim).
To conclude Part Three, I may add the supplication made by the Holy Prophet (Sal) and Muslims during breaking the fast to give my readers an insight into the significance of the fast itself: “Allahumma laka sumnaa wa ‘alaa rizqika aftarna, fataqabbal minnaa inaaka Antas-Samee’ul-‘Aleem” – translated means ‘O Allah! We have fasted for You, and upon Your provisions we have broken the fast, So accept it from us. Verily, you are the All-Hearing, All- Knowing” (Abu Dawood)
Insha Allah – God Willing we will conclude this series with Part Four containing other aspects of the Ramadhan Fast.
In Part One we established from the Quran and the Ahadith the requirement and sanctity of the Ramadan Fast. We also related the Islamic Fast to those prescribed for Jews and Christians. Furthermore, we established beyond doubt the Quranic statements and the Prophet’s (Sal) Ahadith that provide guidance in respect of commencement and conclusion of the Ramadan Fast. In this issue we intend to deal with the controversy and confusion that prevail among Muslims as regards the issues of sighting the moon, calculation of the month number of days or following a Calendar.
Controversy about sighting the moon
As established from the Quran and authentic Ahadith, there was no confusion or controversy on the issue of sighting the moon or the commencement and conclusion of the Ramadan Fast amongst the immediate followers of the beloved Prophet of Islam Muhammad (Sal). The controversy is said to have arisen amongst the later contemporary scholars of Islam. First such controversy relates to whether in an age where technology has advanced to such limits that it is now possible to accurately calculate the astronomical movements of the moon and thereby establish the time and day when the new moon of any month could be found. Scholars propounding this argument relate their authority on the Hadith we cited in Part one which for ease of reference is quoted here again:
Abu Bakr bin Abi Shaybah related to us: Ghundar related to us from Shu’bah: (Also, related to us Muhammad bin al-Muthanna and Ibn Bashshar; Ibn al-Muthanna said: Muhammad bin al-Ja’far related to us Shu’bah related to us) from al-Aswad ibn Qays who said: I heard Sa’id ibn ‘Amr bin Sa’id (say) that he heard Ibn ‘Umar report from the Prophet who said: “We are an unlettered people. We neither write nor calculate. A month is thus and thus and thus, folding his thumb the third time and a month is thus and thus and thus (not folding his thumb the third time), that is, (ya’ni) 30 (days).
The proponents of using astronomical calculations rely heavily on the above Hadith in support and argue that by indicating the number of days in the month as 29 or thirty by pointing to the number of fingers in his hand, the Prophet of Islam (Sal) meant this for a time when such technology was not available. But at this age technology has advanced to such level that the appearance of the moon can be predicted to a great degree of accuracy. Opponents of astronomical predictions of the appearance of the moon rightfully argue that, if the ever Merciful Allah and the Holy Prophet of Islam (who did not declare religious edicts without the prompting from Allah) had wanted Muslims to do anything differently to what has been ordained, then surely, they would have provided a rider – an alternative instead of sighting the moon. The only alternative provided by these two divine sources is that if the moon is not visible on the day it was supposed to be “born”, then complete thirty days of that particular month and commence the Fast irrespective of whether one sees the moon thereafter or not. One other very important point that opponents of the Nujoomi astronomical method raise is that these calculations are ‘not accurate’ per se they are based on probability, similar to whether predictions. Therefore, the reliability of such predictions are suspect and can go immeasurably hay wire. Hence, they argue what better method is there than what has been given to us by the Almighty Allah and the Prophet (Sal)? (Allah knows best).
Sighting the Moon
It is the general belief of all Muslims that the moon must be sighted by the naked eye by a Muslim who is not known to have lied on any other matter and must be witnessed and supported by a Muslim of similar credibility. The Quranic verse which states “…start when you see it…” meaning the moon and the Holy Prophet (Sal) Ahadith do not stipulate that the moon must be ‘seen with the naked eye’. This is another point worthy of note as regards use of technology. God in His absolute wisdom and His Messenger (Sal) obviously did not restrict the sighting of the moon with the naked eye in order to allow the use of whatever means to see the moon by those who are visually challenged. Therefore, the great Imams and later contemporary Islamic Scholars have extended by Ijthihad – human reasoning that if people with visual difficulties can use a pair of spectacles for reading the Quran then by extension the moon can be sighted by the use of a microscope and that sighting will be valid to commence and complete the Ramadan Fast. (Allah knows best). However, it would be foolish and against Allah’s Will to ignore or reject the availability of technological science for determining what Allah has stated in general terms in the Quran
“It is He Who created the night and the day and the sun and the moon. They float, each in an orbit.”(Al-Anbiya, 33).
Therefore, we discuss below the extent to which astronomical calculations may be valid.
How Far Can One Rely on Astronomical Calculations?
There are two questions that needs addressing in this case.
1. Can one establish the start of a month purely on the basis of astronomical calculations?
2. Can this method be used when the moon (hilal) is obscured by clouds, fog, dust storm etc?
Some Muslims, taking the meaning of the Holy Prophet’s (Sal) Ahadith in their purest, nascent and literal meaning, submit very strong arguments against calculations under any circumstances to determine the start/end of the Islamic month. They appeal to those narrations, in which it is said: “complete the number (30)”. They view “complete the number” as mubayyan (clear), clarifying the mujmal (general and imprecise) words fa aqduru la hu (explained in Part One) and appeal to the principle that “it is obligatory to refer the mujmal to the mubayyan, and this is the way of the scholars of usul, without any disagreement.” (Ref: Ibn Rushd, Bidayat al-Mujtahid). But this argument is now seen to be invalid since we have shown that the original words used by the Prophet were only fa aqduru la hu and the phrases like akmilu al-‘iddah found in some narrations are a tahrif, like the saying ya’ni when explaining complete thirty days, probably done “innocently” to clarify the hadith in the light of an interpretation.
In its original authentic form all the Ahadith concerning this issue give priority to hilal sighting and admitting calculation when there are factors obstructing the visibility of the new moon. Thus the answer to the two questions would seem to be that calculations should determine the start/end of Ramadan or any other lunar month only in case it is not possible to see the new moon.
It can also be argued with equal strength that the use of calculations in all cases, whether or not during conditions when the visibility exist or in doubt, by saying that when the Prophet told Muslims to start and end Fasting upon seeing the new moon of Ramadan or Sha’wwal as the case may be, he was not laying down a law for all times to come but giving a convenient and reliable way to define and determine the start and conclusion of Ramadan. If the advancement of technology and the use of astronomy (also knowledge inspired by God Almighty) is available and allows some alternative reliable way of defining and determining the start and ending of a lunar month, then it would indeed be foolish not to make use of such technology. It can be likened to the command in the Holy Quran to fast from dawn to dusk. Nobody looks out at the sky whether they can see the white streak of dawn appear and the dark streak vanishes to stop eating and similarly to look at the sky when dusk appears to see the white streak of daytime disappear and the dark streak of night appears to break the fast. They do not even rely on the call of the Muezzin in the local mosque but wait for SLBC’s Azan pronouncement on the wireless. It is clear that fasting from ‘dawn to dusk’ mentioned in the Holy Quran is a means to determine a period of fasting that proves to be satisfactory for an overwhelming majority of Muslims but not for the tiny minority that lives near the poles of the earth. Similarly, when the Prophet told us to start and end a month by seeing the new moon, “seeing” was not a requirement but a specific method to determine the start and end of a month, a method that was the best method for all the past centuries but may not be best now and therefore may be replaced by a better method. (Allah knows best).
People who propose using only astronomical calculations depend heavily on the Hadith we have quoted in the beginning paragraph of this part and argue that the way to establish the duration of a lunar month adopted by the Prophet reflected the level of knowledge that people had at the time and place of the Prophet’s appearance and that this method can change with the increase in that level of knowledge. This is purely Ijthihad (human reasoning) and there is nothing wrong with it. However human reasoning applied to any one situation can have several variants as proved by Imam Abu Haniffa, the greatest proponent of Ijthihad in respect of a case where Imam Malik had given a ruling during Imam Abu Haniffa’s absence and on his return gave five different reasons all plausible when the question was referred to him. Eventually, explained that the first one given by Imam Malik was to be accepted. Therefore, questions of human reasoning, in my humble opinion must be treated with caution.
At the present time this is a matter of judgment and so we should stick to the letter of the Prophet’s words. Hence we should go by sight when the moon is visible and use the best available astronomical calculations when the visibility is obstructed. (Allah knows best).
Regional Variations in Moon Sighting
As much as there is controversy in the commencement and completion of the Fast, there are also a group of Muslims who insist that in the matter of Ramadan, Muslims all over the world must follow the declarations from Saudi Arabia. People who advocate this argument take their support from the Ahadith themselves. They argue that the absolute merciful God and the beloved Prophet (Sal) did not specify regional sightings but addressed Muslims as a whole and recommended global acceptance. There is no firm support for such contention in the Quran or Ahadith supported by any such controversy having come about during the lifetime of the Prophet (Sal). In the following Hadith in Sahih Muslim it is confirmed that companions of the Prophet (Sal) refused to accept the sighting of the moon in one region as applicable to others support:
Yahya bin Yahya and Yahya bin Ayyub and Qutaybah (bin Sa’id) and Ibn Hujr said (Yahya bin Yahya using the word akhbara na, while others using haddatha na): Isma’il who is Ibn Ja’far related to us from Muhammad who is Ibn Harmalah from Kurayb that Umm al-Fadl, daughter of Harith, sent him to Mu’awiyah in Syria. He said: I arrived in Syria, and did what she needed. While I was in Syria the month of Ramadan commenced. I saw the hilal on Friday. I then came back to Madinah at the end of the month. ‘Abd Allah bin ‘Abbas asked me, mentioning the new moon, and said: When did you see it? I said: We saw it on the night of Friday. He said: You saw it yourself? I said: Yes, and the people also saw it and they fasted and Mu’awiyah also fasted. He responded: But we saw it on Saturday night and so we would continue to fast till we complete thirty (days of fasting) or we sight it. I said: Is the sighting of Mu’awiyah not sufficient for you (taktafi)? He said: No; this is how the Messenger of God has commanded us. Yahya bin Yahya was undecided between naktafi (sufficient for us) and taktafi (sufficient for you). (Muslim)
Insha Allah, We will discuss the veracity of the above Hadith and other connected matters in Part three which will appear tomorrow.
With the advent of the new moon ushering in the lunar month of Ramadan on the 9th or 10th of July this year, Muslims all over the world will commence the ritual of fasting. In the context of the Islamic religion, fasting is not just a ritual. It is a religious duty enjoined on those entering the fold of Islam. As much as observing the compulsory prayers, giving the compulsory Zakath tax and undertaking the journey to the Holy City of Makkah for performing Haj, fasting is required to be observed with equal reverence because it is an act of worship. The Arabic word for this act of worship is SIYAAM and the person who undertakes the fast is called a SA’AYIM. In the context of the religious fast these two words do not signify mere abstention from food and drink, but also complete abstention from evil thoughts and actions and harmful acts towards others (including animals and plants).
I wish to deal with the issue of the Muslim Fast in two or three parts as the subject is extensive and needs explanations as elaborative as it is extensive. In this First Part I intend to deal with issues of God’s ordainment for fasting and the contentious matters concerning the commencement and conclusion of the Ramadan Fast.
The ever Merciful Allah says in His Holy Book:
“O you who believe! Fasting is prescribed for you as it was prescribed for those before you, that you may become Al-Muttaqun (the pious)…”
Allah in His absolute Mercy does not wish hardships on His creations. Therefore Allah says in the foregoing verse of the Quran that this fasting is not peculiar to Muslims only. It had been ordained on people who followed other Prophets prior to Allah sending the last and seal of the Prophets.
The Jews are required to fast for sixty days during Passover and a strict observance of the fast on the day of atonement (Jeremiah 36:6), also see the Fast (Acts 27:9)
Moses fasted during the 40 days and 40 nights he was on Mount Sinai receiving the law from God (Exodus 34:28). King Jehoshaphat called for a fast in all Israel when they were about to be attacked by the Moabites and Ammonites (2 Chronicles 20:3). In response to Jonah’s preaching, the men of Nineveh fasted and put on sackcloth (Jonah 3:5). Prayer and fasting was often done in times of distress or trouble. David fasted when he learned that Saul and Jonathan had been killed (2 Samuel 1:12). Nehemiah had a time of prayer and fasting upon learning that Jerusalem was still in ruins (Nehemiah 1:4). Darius, the king of Persia, fasted all night after he was forced to put Daniel in the den of lions (Daniel 6:18).
Christians are required to fast for 40 days during the period of lent and the New Testament records fasting in different situations. Anna “worshipped night and day, fasting and praying” at the Temple (Luke 2:37). John the Baptist taught his disciples to fast (Mark 2:18). Jesus fasted for 40 days and 40 nights before His temptation by Satan (Matthew 4:2). The church of Antioch fasted (Acts 13:2) and sent Paul and Barnabas off on their first missionary journey (Acts 13:3). Paul and Barnabas spent time in prayer and fasting for the appointment of elders in the churches (Acts 14:23). Thus the Quran explains that fasting is not a new act imposed upon Muslims.
For Muslim Allah continues in the same verse quoted above as follows:
“…(Fasting) for a fixed number of days, but if any of you is ill or on a journey, the same number (should be made up) from other days. And as for those who can fast with difficulty, (i.e. an old man, etc.), they have (a choice either to fast or) to feed a poor person (for every day). But whoever does good of his own accord, it is better for him. And that you fast, it is better for you if only you know.” (2:183-84)
While there are no difficulties about the number of days for the Fast and the times between which abstention from food and some other permitted acts on other times are forbidden, there are controversies, confusion and contradiction with respect to commencement and conclusion of the Fast.
The month prescribed for the compulsory Fasting is the ninth month in the Islamic Lunar Calendar called in Arabic Ramadan (Quran 2:185). However, unlike the days in the Julian Calendar, the days in a Lunar month can differ from year to year, but the difference is never more than one day – that is the lunar month in either 29 days or 30 days depending on the cycle of the moon (Quran 55:5, 10:5, 36:39-40). According to the Islamic Calendar months are to be counted by new moons (Quran 2:189, 10:5).
Allah in His absolute wisdom clarifies in the Quran that when someone sights the crescent of the month (of Ramadan) must commence the fast as follows:
“The month of Ramadan in which was revealed the Quran, a guidance for mankind and clear proofs for the guidance and the criterion (between right and wrong). So whoever of you sights (the crescent on the first night of) the month (of Ramadan), he must fast that month, and whoever is ill or on a journey, the same number (of days which one did not fast must be made up) from other days. (Emphasis mine).
Thus sighting of the moon for commencement of the fast is not just from Ahadith but contained in the Quran as cited herein.
“Allah intends for you ease, and He does not want to make things difficult for you. (He wants that you) must complete the same number (of days), and that you must magnify Allah for having guided you so that you may be grateful to Him” (2: 185)
In authentic Ahadith in Imam Malik’s Muwatta and the two Sahihs Bukhari and Muslim, it has been reported on the authorities of Ibn Umar (RA) and Ibn Abbas (RA). I cite these Ahadith with the full chain of narration in order to avert any controversy as to authenticity:
- Yahya related to me from Malik from Nafi‘ from ‘Abd Allah bin ‘Umar that the Messenger of God once mentioned Ramadan and said: “Do not begin the fast until you see the hilal and do not break the fast until you see it. If it is obscured from you (ghumma ‘alaykum), fa aqduru la hu.” (Muwatta).
In explanations of the transliterated Arabic words (fa aqaduru la hu) in the above Hadith, Islamic Scholars derive an interpretation from the Quran itself that it can mean a set limit (Quran 77:22-23, 6:96) or evaluate or estimate or measure (Quran 6:91). Applying either meaning to the stated words, Ulemas interpret this as if the crescent moon cannot be seen by being obscured by cloud, dust etc. then calculate or estimate the length of the month of Ramadan or restrict the month to twenty nine days.
- Abu Bakr bin Abi Shaybah related to us: Abu Usamah related to us: ‘Ubayd Allah related to us from Nafi‘ from Ibn ‘Umar that the Messenger of God once mentioned Ramadan, made a gesture by his hands and said: “A month is like this and this and this,” folding his thumb the third time. Then he said: “Start fasting when you see it and end fasting when you see it. If it is obscured from you (ughmiya ‘alaykum), fa aqduru la hu thalathin (count for it 30 (days)). (Muslim)
- Zuhayr bin Harb related to us: Isma‘il related to us from Ayyub from Nafi‘ from Ibn ‘Umar that the Messenger of God said: “A month rather (innama) is 29 days. Do not begin the fast until you see it and do not break the fast until you see it. If it is obscured from you, fa aqduru la hu. (Muslim)
- Hajjaj bin al-Sha‘ir related to me: Hasan al-Ashyab related to us: Shayban related to us from Yahya who said: Abu Salamah informed me that he heard Ibn ‘Umar say: I heard God’s Messenger say: “A month is twenty-nine (days).” (Muslim 13/11)
- Abu al-Walid related to us: Shu ‘bah related to us from Jabalah bin Suhaym who said that I heard Ibn ‘Umar saying that the Prophet said (showing his ten fingers thrice): “The month is like this and this” and left out (khanasa) one thumb the third time (Bukhari 3/132)
The above authentic citations from the Holy Quran and Ahadith unequivocally establishes the requirement for sighting the crescent moon of the month of Ramadan at the end of the 29th day of the previous month Sha’ban. If the moon has not been sighted due to haze, cloud, dust storms etc., then complete thirty days of Sha’ban and commence the fast for Ramadan irrespective of whether the crescent moon is sighted or otherwise. Similarly, after observing the fast for 29 consecutive days look out for the birth of the new moon of the succeeding month Shawwal and if the moon is similarly obscured by cloud, haze, storms etc., then complete thirty days of fasting and celebrate the joyous occasion of Eid. This is simple clear and concise, but then why is the controversy and confusion? There is no evidence that such confusion or controversy existed during the life time of the Holy Prophet (Sal.,) or during the period of the Thabi-een, or Thabi-ith-Thabieen (the successive generations of followers of the Holy Prophet (Sal) footsteps, with connections to the one who had been with the Prophet (Sal) or immediate companions. They followed what was stated in the Quran and by the Prophet (Sal) and did not go further. Therefore to understand the nature and extent of the controversy let us analyse another Hadith from Sahih Muslim, which will shed some light.
Abu Bakr bin Abi Shaybah related to us: Ghundar related to us from Shu‘bah: (Also, related to us Muhammad bin al-Muthanna and Ibn Bashshar; Ibn al-Muthanna said: Muhammad bin al-Ja‘far related to us Shu‘bah related to us) from al-Aswad ibn Qays who said: I heard Sa‘id ibn ‘Amr bin Sa‘id (say) that he heard Ibn ‘Umar report from the Prophet who said: “We are an unlettered people. We neither write nor calculate. A month is thus and thus and thus, folding his thumb the third time and a month is thus and thus and thus (not folding his thumb the third time), that is, (ya‘ni) 30 (days).
Opponents of the requirement of moon sighting and proponents of the Nujoomi calculation method quote the above Hadith in support of their opposition or proposition. They use the terms “We are an unlettered people. We neither write nor calculate…” to relate the Hadith to a particular period of time. That is the period during the lifetime of the Holy Prophet (Sal) and the Thabieen, the immediate followers of the Prophet (Sal). They argue that in the context of this Hadith, the people were illiterate at the time the Prophet (Sal) said this (NaoozuBillah) and did not know astronomical calculations and also did not have the means to verify. However, it is submitted that they cannot argue against the Quranic statement cited at the beginning of this section where God commands the faithful to “Fast when you see it” meaning the moon. (Allah Knows Best)
Having read translations of the Holy Quran by renowned scholars and the 9 volumes of Sahih Bukhari, 4 volumes of Sahih Muslim, and Imam Malik’s Muwattha, I could not find any support for differing from the Quran and the Ahadith’s in respect of sighting the new moon with the naked eye or completing the month in question as thirty days (when the moon is not visible). I will conclude this part by citing the following Ahadith by Abu Hurairah (RA) in Sahih Muslim and Bukhary:
- Yahya bib Yahya related to us: Ibrahim bin Sa‘d related to us from ibn Shihab from Sa’id bin al-Musayyab from Abu Hurayrah that the Messenger of God said: “When you see the new moon, start fasting, and when you see it, end fasting. But if it is obscure for you, fast for 30 days sumu thalathin yawman.” (Muslim)
- ‘Abu Bakr bin Abi Shaybah related to us: Muhammad bin Bishr al-‘Abdi related to us: ‘Ubayd Allah bin ‘Umar related to us from Abu Zinad from al-A‘raj from Abu Hurayrah that the Messenger of God mentioned the hilal and said: “When you see it, start fasting, and when you see it, end fasting. But if it is obscure for you, and if it is obscure for you, count 30 (fa ‘uddu thalathin).” (Muslim)
- ‘Abd al-Rahman bin Sallam al-Jumahi related to us: al-Rubay‘, that is, Ibn Muslim related to us from Muhammad (who is Ibn Ziyad) from Abu Hurayrah that the Prophet said: “Start fasting on seeing it, and end fasting on seeing it, and if it is obscure for you, complete the number (akmilu al-‘adad).” (Muslim 13/2/18)
- ‘Ubayd Allah bin Mu‘adh related to us: My father related to us: Su‘bah related to us from Muhammad bin Ziyad who said: I heard Abu Hurayrah saying that the Messenger of God said: “Start fasting on seeing it, and end fasting on seeing it, and if the month is obscure for you, count 30 (fa ‘uddu thalathin).” (Muslim 13/2/19)
- Adam related to us: Shu‘bah related to us: Muhammad bin Ziyad related to us saying: I heard Abu Hurayrah say: The Prophet said or, (I heard him say) Abu al-Qasim said: “Start fasting on seeing it, and end fasting on seeing it, and it is obscure for you, complete thirty days of Sha‘ban (fa akmilu ‘idda Sha‘ban thalathin).” (Bukhari 3/133)
The sight of a veiled woman, particularly after 9/11 (World Trade Centre) and 7/7 (Central London) events has been enough to send shivers down the spines of Non-Muslims who fear something harmful hidden under the Niqab.
Incidentally for my non-Muslim readers, the Niqab is the name given to the face veil used by Arab women and also copied by Muslim women in other parts of the world including Sri Lanka. As opposed to this the Hijab represents not only the head covering but also the Niqab. It is important to understand the differences between the two because the significance of the face covering can only be appreciated if one knows the difference between the two. The Hijab taken in the right context is applicable to both women and men.
Women’s Rights protagonists criticise any form of Hijab as being symbols of repression of women, because they fail to realise the importance of the Hijab as a measure of authority and protection for women. Their misguided argument is that women are not any more considered as the weaker sex and do not need any protection. Let us therefore see whether the Hijab in fact has anything to do with repression and women’s rights in Islam.
Women in the Scriptures
The Holy Bible
“But I want you to understand that Christ is the head of every man, and the husband is the head of his wife, and God is the head of Christ. Any man who prays or prophesies with something on his head disgraces his head, but any woman who prays or prophesies with her head unveiled disgraces her head–it is one and the same thing as having her head shaved. For if a woman will not veil herself, then she should cut off her hair; but if it is disgraceful for a woman to have her hair cut off or to be shaved, she should wear a veil. For a man ought not to have his head veiled, since he is the image and reflection of God; but woman is the reflection of man. Indeed, man was not made from woman, but woman from man. Neither was man created for the sake of woman, but woman for the sake of man. For this reason a woman ought to have a symbol of authority on her head, because of the angels.“ (Emphasis added (NRSV, 1 Corinthians 11:3-10))
The above verse from Corinthians is powerful evidence that the veil is a symbol of authority rather than that of repression.
“As in all the churches of the saints, women should be silent in the churches. For they are not permitted to speak, but should be subordinate, as the law also says. If there is anything they desire to know, let them ask their husbands at home. For it is shameful for a woman to speak in church”. (NRSV, 1 Corinthians 14:33-35)
The requirement for women to be silent in church does not signify subordination literally. This refers only to the extent of learning the Christian religion from their husbands. There is no obligation upon Muslim women to attend mosques for their prayers, however it is compulsory (Fard) for Muslim women to seek knowledge as contained in the Hadith.
“Be subject to one another out of reverence for Christ. Wives, be subject to your husbands as you are to the Lord. For the husband is the head of the wife just as Christ is the head of the church, the body of which he is the Savior. Just as the church is subject to Christ, so also wives ought to be, in everything, to their husbands. Husbands, love your wives, just as Christ loved the church and gave himself up for her, in order to make her holy by cleansing her with the washing of water by the word, so as to present the church to himself in splendor, without a spot or wrinkle or anything of the kind–yes, so that she may be holy and without blemish. In the same way, husbands should love their wives as they do their own bodies. He who loves his wife loves himself. For no one ever hates his own body, but he nourishes and tenderly cares for it, just as Christ does for the church, because we are members of his body”. (NRSV, Ephesians 5:21-30)
This is very strong language, which I dare not explain but leave for my readers to savour.
Buddhism and Hinduism
In Buddhism I could not find any gender differentiation and a requirement for women to cover their faces. A Bhikkuni shaves her head same as a Bhikku. However, in Hinduism, there are very clear distinction of roles between the male and the female in family life.
The Hijab is a compulsory requirement to be worn by Muslim women when they are in the company of men within marriageable degree of relationships (non Mahrim). They need not wear the Hijab in the presence of Muhrims– those outside marriageable degree of relationship. In Islam, the instruction for Hijab are very clearly stated in the holy Quran and Ahadith.
In Chapter 24 Surat-an-Nur (the Light), in verse 30, Allah commands the practice of Hijab for both men and women through, the Prophet Muhammad (PBUH) as follows:
“Say to the believing men that they should lower their gaze and guard their modesty: that will make for greater purity for them. And Allah is well acquainted with all that they do.”
As much as there is a requirement of Hijab for women, men are instructed in the foregoing verse to observe Hijab in a particular manner contrary to covering their faces.
In the case of women verse 31 of the same Chapter 24 it is commanded as follows:
“And say to the believing women, that they should lower their gaze and guard their modesty; that they should not display their beauty and ornaments except what (ordinarily) appear thereof, that they should draw their veils over their bosoms and not display their beauty except to their husbands, their fathers, their sons, their husband’s sons, their brothers or their brothers’ sons or their sisters’ sons, or their women, or the slaves whom their right hand possess, or male attendants free of sexual desires or small children who have no carnal knowledge of women.” (Emphasis mine)
Allah in his absolute wisdom has most beautifully described in both verses cited above the need for the Hijab for both men and women. In describing the people with whom women can associate without the Hijab, Allah comprehensively clarified that the Hijab is a protection for women against not only sexual harassment but also prevention of temptation not as a symbol of subjugation.
Therefore, it is very clear that the Arabic term Hijab has a much wider meaning than to a reference to the face veil as clarified in the foregoing Quranic Surahs.
Thus it could be established that the dress code required for Muslim women to follow is the Khumur defined in the Arabic dictionary (Al Mawrid) as ‘the veil covering the head’ and also as ‘something with which a woman conceals her head’ (dictionary – Al Munjid), and to draw this ‘head covering’ over their bosoms to cover their ‘ornaments’. Allah in his absolute wisdom has used the word ‘ornaments’ in a metaphorical sense to include all parts of a woman’s body subject to temptation and also ornaments like jewelry etc. as a protection against thieves. The controversial Rector of the El-Azhar University in Cairo, Sheikh Tantawi is of the absolute opinion that a head covering worn to cover the bosom will satisfy the requirement of Hijab and a face covering is not essential. Contrary to this there are very strong edicts (fatawa) from leading scholars that the face veil for Muslim women is compulsory. They draw their authority from the following Quranic verse and authentic Ahadith:
“O Prophet! Tell thy wives and daughters and the believing women that they should cast their outer garments over their persons (when out of doors. That is most convenient, that they should be known and not molested, and Allah is Oft-Forgiving Most Merciful” (33:59)
The Arabic word used for the outer garments stated above is “Jalabibihinna” Moulana Abul Ala Moudoodi is emphatic that this term refers to a face covering to be let loose covering the whole body although most Arabic dictionaries translate the word as a loose garment. Moulana Moudoodi’s edict is supported by the following Ahadith.
“Ummu Salma Hind bint Abi Umayya narrated that when the verse ‘that they should cast their outer garments over their persons was revealed, the women of Ansar came out as if they were crows hanging down over their heads by wearing outer garments” (Sunan Abu Dawud).
“Safiya bint Shaiba narrated that ‘Aisha used to say :’when (the verse): ‘They should draw their veils (Khumur) over their necks and bosoms (juyyub)’ was revealed, (the ladies) cut their waist sheets at the edges and covered their faces with the cut pieces’”.(Sahih Bukhari)
Thus it is a matter of choice which Islamic dress code that Muslim women choose to adopt, nevertheless the Hijab must be observed as commanded by Allah not as a symbol of subjugation but as a symbol of protection and authority.
Following my last article, I was waiting till the dust settled on the Rizana Nafeek case. It appears that like the Shamaal dust storms in Saudi Arabia, the dust on this case is unlikely to settle indeed for a long time to come. Therefore, if I had to wait for it I might have to wait till eternity. Looking at what the holy Qur’an and the sayings of the holy Prophet Muhammad (Sall Allahu Alaihi Wa Sallam), it is clear that there had been a miscarriage of justice for which there is no recompense. Rizana Nafeek is no more, any amount of compensation or appeals of violations of her human rights will not bring her back. The Saudi judges saw to that. All appeals made by Human Rights Organisations and the Sri Lanka government itself fell on Saudi deaf ears, clearly demonstrating that the Saudis did not care for public or world opinion. Therefore, there is no guarantee that whatever we might write about the rights and wrongs of the Rizana case is not likely to help any other poor victim. Nevertheless, it is necessary to acquaint our non-Muslim brothers what the holy Qur’an and the Ahaadith (traditions of the Holy Prophet (Sal)), have to say on a matter of this nature and let them decide whether the Saudi judges (if one can call them that) acted according to the Islamic Shari’ah laws. (Allah Knows Best)
The Rizana Case
It is an admitted fact that the baby being cared for by the maid Rizana died. It is also an admitted fact that the baby died when being fed by Rizana. Therefore, circumstantially the baby died at or in the hands of Rizana. But did Rizana kill the baby? The fact that the baby died by choking of milk. It is natural that when any substance even water enters the windpipe of any person choking or great discomfort occurs. In a baby this can have very serious consequences. Any qualified medical practitioner can confirm that. The girl Rizana admits that this was what happened and she was only trying to save the baby by doing the only thing she knew – to stroke the windpipe. Therefore there is serious doubt whether it was her “stroking” the neck killed the baby or the natural circumstances of milk choking that killed it. The cause of death is important in any case of homicide. There is no evidence that the cause of death had been established. If there was such evidence we do not know. Since we do not know any more than this we will have to speculate on these facts. If these facts are wrong and there was very clear evidence that the actions of the maid Rizana caused the murder, then it has to be proved that she intended to murder the baby, instead of trying to save it. This indeed is not easy to prove as most Islamic jurists have opined. Intention is in the heart, only external events and the conduct of the accused can provide some evidence of intention. From the reports that we have there are no such events or conduct of the maid to establish intention. (Allah Knows Best)
The Shari’ah Perspective
In the first place it has to be understood that capital punishment (hanging, beheading, electrocution etc.) for murder (killing of another person) is permitted under the Shari’ah. This comes under the Qur’anic doctrine of Qisas. The doctrine of Qisas is the same as what is stated in he Holy Bible – Exodus 21.24, Leviticus 24.20 and Deutronomy 19.20 that “You have heard that it has been said, An eye for an eye, and a tooth for a tooth”. Commentators of the Bible argue that God did not mean that the victims should seek revenge. It was only a guide to the Magistrates who pass sentence in order that they do not exceed the limits of sentencing beyond the degree of hurt committed by the accused.
Contemporary Egyptian jurist Abu Zahrah holds the view that “the purpose of Qisas is to preserve life”. In arguing thus Abu Zahrah relies on the Qur’anic verse 2:179 which address the ulyl albab, meaning those who understand which says that “there is life in Qisas“. All Islamic jurists – Abu Haneefa, Shafi’i, Malik, and Hanbal are of the consensus that “the murderer’s execution has the long term effect of preserving the life of the community”. This means that capital punishment acts as a deterrent to others who want to kill. That is the reason for a public killing.
Permitting capital punishment does not mean that it can be done willy nilly. Islamic law has its own strict checks and balances (dhawabit). The punishment cannot be imposed if the due processes have not been observed in a fair trial and all extenuating circumstances fully considered. In the case of murder, the Qadhi (judge) acting on behalf of the state, can only inquire into the facts and establish without any reasonable doubt that the accused killed the victim. He can pass judgement, but not the sentence. To understand this concept we need to delve further into the Holy Qur’an.
On committing murder the killer is said to violate three separate rights as follows:
• The right of the victim and his family (haq al abd)
• The right of society to peace, safety and tranquillity (haq al mujtama); and
• The right of Allah (God) (haq Allah)
The first two are those that can be explained by us, but the third one is Allah’s domain, He may punish or forgive as He pleases (Qur’an 4:48). (Allah Knows Best).
Considering the first right, the victim’s family who suffers the most emotional, painful and insufferable effects of the murder has the most at stake. The victim may be the only child or maybe one who has been born after many years of suffering without a child. There may be many reasons but whatever the reason might be a loss in a family will be hard to bear. Therefore, for this reason, Islamic Shari’ah gives the family the right to seek Qisas (retaliation) against the murderer in court. I have carefully refrained the use of the “accused” for murderer because the “accused” does not become the murderer until proved guilty without any shadow of reasonable doubt. It is important to understand that if the victim’s family does not seen Qisas in court the State cannot impose Qisas on its own initiative. This is the view of majority of Islamic jurists.
If however, the murder is proved as stated before, and the victim’s family are not interested in Qisas (meaning retaliation by killing or blood money compensation), then it is not automatic that such a proven murderer is to be pardoned and let loose, unless the victim’s family expressly requests that. The State has to protect the public good (maslahah). In such event the State will keep the convicted murderer in confinement for a period or exile the person. These sentences although of a less retributive nature are expected to have the same deterrent effect.
American lawyer Azizah Yahia Muhammad Toufiq al-Hibri, Professor in University of Richmond School of Law has expressed the view that “this restriction on the state is very important, because the judiciary is a branch of the state, it becomes very important to limit the state’s ability to deny life to its citizens. After all, the state may be oppressive and authoritarian, the judiciary may be biased, or the state may exercise undue influence over the judiciary”. Incidentally it appears that the author of the statement cited above must have been thinking of some regimes in Arabia. Therefore, this restriction is one of the elements of checks and balances imposed by the Shari’ah.
It must also be clearly taken into account that although God gave the victim’s family the ‘carte blanche’ right to demand Qisas, Allah in his absolute wisdom and mercy, urged them “to move forward and forgive”. (Qur’an 2:178; 42:40). Allah has beautifully described forgiveness as being better than revenge or punishment and have extolled the virtues of forgiveness extensively in the Holy Qur’an 42:40; 5:45; 2:37; 24;22; 2:109). Allah has promised a reward for those who forgive (Qur’an 42:40; 5:45).
Another important gift of Allah under the Shari’ah is the alternative right of the family to seek monetary reward or blood money (diyyah) instead of capital punishment. It is unthinkable that any family whose loved ones had been murdered in cold blood would ever be able to forgive the person who committed the crime or forget the loss. God, in His absolute wisdom and mercy though provides an outlet to the victim’s family which would at least provide some psychological comfort. However, it must be clearly understood that whatever amount of blood money or monetary compensation when given will not equate the loss as evidenced by the refusal of Rizana’s parents to accept any such “gifts”, who consider that their daughter was indeed murdered by the Saudi authorities, without proper investigation. Such compensation although meant to mitigate some of the economic losses suffered by the family, it will definitely not bring back Rizana to us, they say.
From all reports published it can be established that Rizana is not a murderess. However an act of mercy as prescribed in the Holy Scriptures will give a genuinely repentant killer the possibility of reparations.
Also under Islamic Fiqh (jurisprudence), it is sufficient for one member of the family to grant the forgiveness and that will bind all the others. It is reported that in criminal matters the Islamic law is in force and families of the victims (except in very rare cases) often forgive the murderer with the belief that such forgiveness would help the victim, their beloved one, in the after-life and help the souls of the living as well. It is believed that psychologically, the very act of deciding to forgive is immensely healing as it allows the family to work out its pain in accepting God’s determination (qada’a).
Western Province Governor Seyed Alavi Moulana and Al Haj A. H. M. Azwer MP, confided in me that they left “no stone unturned” to obtain clemency for Rizana. In fact they were surprised that the Chief of the tribe to which the aggrieved family belonged afforded them a “royal” welcome and assured them that Rizana would be forgiven and pardoned. If this assurance was genuine then Rizana should have by now been at her home in Sri Lanka, rather than in an unknown grave in an unknown place. If this is the state of assurances given by responsible Saudi people, what can anyone expect from the general Saudi Public? In my view if the case had been properly heard according to the Islamic Shari’ah there is no question of any forgiveness or pardon. Rizana should have been acquitted honourably. Also, why the covertness in the beheading? Should not the family have been informed of the final decision to execute the poor girl? The Saudi Authorities did not even have the courtesy of informing the Government of Sri Lanka, the President of which made a plea for clemency and the representatives who went to see the tribal chief that their representations had been unsuccessful. As much as the aggrieved family had rights poor Rizana’s family also has rights. The Government of Sri Lanka had a right to know the outcome of their appeal. They have all been ignored. This is not the Shari’ah taught by our beloved Prophet (Sal) and practiced by the Caliphs. The law of the desert should not be compared or confused with the most clement Shari’ah law of Islam. Allah Knows Best
May Rizana’s soul rest in eternal peace and attain the abode in Jannathul Firdous.
Homicide and Bodily harm fall within the Koranic doctrine of Qisas. Homicide, according to the Islamic Shari’ah falls into five categories as follows:
The above five categories are graded on a scale of intentionality. Cambridge University Prof. Wael Hallaq states that “the degree of intentionality involved is measured by external criteria, as the jurists deemed knowledge of inner motives (ma fil-batin) to be well nigh impossible”.
This to me is the same as establishing mens rhea in common law courts when determining guilt in criminal cases. It would therefore appear that there is some similarity between the standards of proof required under common law and that under the Shari’a. In fact the standard of proof under the Shari’a is much more stringent than that required under common law principles.
Before discussing Rizana Rafeek’s case as presented to us and without making any value judgements on the Saudi legal system let us see what the five categories of homicide define.
Qatl amd – Intentional Killing
This type of killing involves not only the intent to kill but also the use of a lethal weapon that is customarily used to kill. Furthermore, it must be committed by the murderer without any coercion. This is an integral element of intentionality. Anyone who kills someone under pressure from another person would not be liable to the death penalty.
According to reports Rizana did not use any lethal weapon. Whether she killed the child intentionally is another matter and there is no evidence of any coercion. By definition the alleged offence does not fall under this category.
Prof. Hallaq explains that “liability for punishment (in this case) is inextinguishable, giving the kin of the victim an eternal right to inflict appropriate retaliation or collect damages.
Shibh amd – Quasi intentional Killing
In this type of killing the element of intention to exercise violence is present but the instrument used is neither regarded as lethal nor customarily construed as a murder weapon. For example a small stick. The followers of Imam Shafi’i and Imam Hanbali hold the view that repeated beating with a stick causing the death of a person would amount to committing the act with full intent, as against causing death by striking once or twice. Similarly if someone playfully pushes another into waters infested with crocodiles without knowing the presence of those reptiles can be accused of committing a “quasi intentional” killing although it was done without any malicious intentions.
As stated in the previous paragraph, newspaper and other reports do not indicate that the accused used any kind of weapon, neither is there any suggestion to assume otherwise. Therefore, it would appear, that Rizana’s case does not come under this heading either.
There is no capital punishment amounting to beheading in under this category. However, compensation under this group of killing amounts to extensive blood money, unless the accused is pardoned by the victim’s family.
Khatl khata’ – Accidental Homicide
This is a pure accidental event such as accidentally shooting someone, while hunting game. If the reports are correct (and if the child had actually died in the hands of Rizana), then what actually happened is accidental death. We are told that the child had choked while being fed and the maid Razana only “stroked” the child’s throat to relieve it from choking. What resulted was unbelievable. If this was the case then it is accidental death coming under this category. There is no capital punishment of beheading in this instance and the damages are also very little.
Majra al-khata – Similar to Accidental Homicide
This happens when someone accidentally trips on someone or something and falls on another person killing him or her. Or when someone while being asleep rolls over someone or falls from a bed on someone asleep below resulting in the other person’s death. There is no death sentence for this offence and the damages are far less than in the case of other categories. This will not be applicable to Razana’s case.
Qat bi sabab – Indirect Killing
These are very rare incidences such as when someone is digging a well and that he did not provide any safety barriers causing someone to fall and be killed. This is also not an offence punishable by beheading and as in the case of the previous two offences the damages are also minimal. This will also not be applicable to Rizana’s case
On analysis it would appear that the girl Razana Nafeek’s case falls under the category of Khatl khata’ – Accidental Homicide. I am basing assumption only on hearsay evidence. If that is the case it would appear that the Saudi Judges have erred in sentencing her to be beheaded. ALLAH KNOWS BEST.
The question has been raised as to why the girl was kept for nearly two years in custody if she was actually guilty. It has been revealed by a Human Rights Group that the girl was kept in custody following an appeal. At the same time that the girl was a minor of 17 years at the time she committed the alleged offence will not hold good because she was an accomplice for falsifying her age by Employment Agents. These defences must fail.
Homicide under the Islamic Shari’a is a private wrong. Prosecution takes place only upon the demand of the victim’s next of kin. Minors and the insane are exempt from punishment. Nonetheless, their next of kin become liable for financial damages. It appears from all the reports that I have read, the fact that the baby died “at the hands” of the maid, thus establishing actus rheus. According to reports the cause of death was attributed to choking and the maid had only tried to relieve the baby by “stroking” the neck. A likely story some might say, but there is certainly a degree of doubt. In my humble view, the benefit of the doubt should certainly have been given to the girl Razana. The fact that the mother of the victim had very strongly initiated the prosecution should not have prevented the Saudi government from appealing for clemency. Also did the Sri Lankan Embassy in Saudi Arabia do enough to challenge the Arabic interpretation of Razana Nafeek’s alleged confession? Apparently, the statements made by Razaa, who did not know Arabic, was translated by a Malayalee translator. There is no evidence that anybody had challenged that translation.
Therefore, it appears that mistakes had been done by both sides. If Saudi Arabia followed the law of that country in beheading Razana Nafeek, it is their law and should not be compared with the Islamic Shari’a
Ref: Hallaq; W.B; Shari’a – Theory Practice Transformations – Cambridge University Press (2009)
The Oligopsonistic Nature of the Construction Market
In Part One we discussed the laissez-faire principle of the freedom to contract and subsequently in Part Two we demolished the myth that in construction contracts, the contractor is at a disadvantage because he has to accept a contract award without the ability to bargain and negotiate its terms, particularly because, the contractor is provided the opportunity to price his risk in accepting conditions to which he had no opportunity to negotiate. But in a competitive economy, particularly to the extent of competition in the construction industry, contractors have no alternative but to ignore some of the risks purely for the sake of winning the job in order to be in business.
It is certainly true that the project sponsors – who in management terminology are buyers, pull the metaphorical strings to the extent that it could even be termed oligopsonistic, although in reality it is not the same. An oligopsonistic market is defined in the financial dictionary as “a market characterized by a small number of large buyers who control all purchases and therefore the market price of a good or service”. Before any business Guru takes issue with me on the use of the term “oligopsonistic” in respect of the client – contractor relationship, I hasten to explain that I using this term guardedly and in a limited sense. Project sponsors, having the money are certainly powerful buyers thereby being able to control and take advantage of seller (contractor) competition and bargaining outcome. Thus it can be likened to an “oligopsonistic” situation and nothing else.
Against this background how can a contractor succeed in overcoming the disadvantages arising out of un-priced risks in any submitted tender? The answer is simple!! Risks arise mainly out of what is contained in the conditions of contract and associated documents rather than in the execution of the works. However, to a great extent execution of the works are dictated by the documents forming part of the contract. Besides the conditions of contract there are other documents that form part of the contract. In a discussion of this nature we can only analyse standard conditions of contract. Particular conditions, specifications and other documents will depend on a variety of factors and would be designed for each project.
There are several standard forms of contract. In the United Kingdom, the Joint Contracts Tribunal (JCT) Form, GC Works Form, NEC Form are most popular. There are however several other forms for minor works, sub-contracting etc. Similarly in other parts of the world each either have their own conditions or modify existing conditions in other countries to suit their needs and corresponding laws. FIDIC documents are designed for use worldwide. They contain generic terms, some or most of which require modification by particular conditions. In my experience in the Middle East, FIDIC has not been used in its complete form. In some cases the particular conditions run into over one hundred clauses, thus rendering the document indistinguishable as a FDIC document anymore. In the UK and Malaysia, the forms of contract are drafted by consensus between the various parties who are members of an organisation like the Joints Contract Tribunal in the UK and the Construction Industry Development Board (CIDB) in Malaysia. Such forms are periodically revised and updated to overcome situations that have arisen in decided cases or changes in law. Contractors bidding for jobs in competition do not have any control on the type or form of contract upon which they are expected to bid except for the opportunity to price the risks contained in them.
In order to provide this opportunity all recognised methods of measurement require a preliminaries bill to be included in the tender bill of quantities to be priced by bidders. Quantity Surveyors tend to list every clause of the conditions of contract and other documents in the preliminaries bill. Thus indicating to the bidder, that there are no “hidden small prints” in the tender documents and that in accordance with any Unfair Terms Contract Acts like that in the UK, the bidders are properly informed. It would therefore appear that complete transparency is displayed in the tender documents and hence there should be no cause for contractors to complain.
It is however not as simple as that. One contractor explained to me in his own words that “we are competing in a dog eat dog world. All contractors in the construction industry are fighting for survival. If we go on pricing all the risk in the preliminary bill, for sure we will lose jobs and eventually end up in bankruptcy”. These sentiments are absolutely true. Where therefore is the problem?
In my experience, the problem mainly rests with contract administrators. After the award of a contractor both sides are under pressure. The entry of project managers to the construction industry was expected to ease the situation as Sir Michael Latham would have liked and expressed in his Latham report. However, in my experience it has created more problems (at least as far as the construction industry is concerned) than solving them. Once again before anyone takes issue with me on this statement, I must explain that this has nothing to do with project management or project based management. These when properly applied will certainly bring about the good results expected from them. The problems are created either by people who do not understand project management and want to be project managers or by employers who dictate to the project manager to compromise his independence. Well, he (the Employer) is paying for it therefore the project manager if he wants to be in business must toe the line irrespective of hurting the contractor.
In the next part we will try to discuss, how the contractor can overcome these difficulties with an analysis of the FIDIC red book.
All articles appearing in this blog are my own views. Wherever a citation or a reference from another source has been used, I have given proper acknowledgement. If I have inadvertently missed out any such acknowledgement it is not intentional.
Freedom of Contract and Inequality of Bargaining Power
I promised that Part 2 will appear in April. Unfortunately due to the pressure of other commitments I was only able to sit down and compose this part now. My sincere apologies for all those readers who patiently waited for this instalment of my article.
In Part One, we discussed the significance of the freedom to contract and the laissez faire principle. We established that no one can force anyone else to enter into any contract under any circumstance. If forced to do so, the freedom will be lost and the contract will be voidable. This being the case, how about economic pressure being brought upon one contracting party on the other? Contractors point out that the need to be in business and their commitment to their own employees, sub-contractors, suppliers and creditors force them to submit tenders for contracts on conditions upon which they would otherwise not tender. They have no choice but to accept standard conditions and/or standard conditions supplemented by particular conditions. Contractors do not have the choice and any qualifications contractors dare to insert might cost them the job.
Part 1 of this article got a mixed reception. Some of the readers accepted the reality of the freedom to contract, while others, most of them building contractors, were critical that freedom of contract is all well and good but that does not help them without the prospect of bargaining power. The reality they say is that, they need to be in business and Employers take advantage of by putting one sided stringent terms in contracts. This is succinctly explained by Economics Guru Adam Smith in his “Wealth of Nations” as follows:
“It is not, however difficult to foresee, which of the two parties must, upon all ordinary occasions, have the advantage in the dispute, and force the other into compliance with their terms. The masters being fewer in number, can combine much more easily; and the law, besides authorises, or at least does not prohibit their combinations, while it prohibits those of the workmen”.
This clearly highlights the inequality of bargaining power between the powerful and weaker party. Adam Smith explains:
“We have no acts of parliament against combining to lower the price of work; but many against combining to raise it”.
Under such circumstances the strength of the bargaining power is with the stronger party, like clients, against the vulnerable weaker party, the contractor, and Adam Smith explains that in the event of disputes:
“(I)n all such disputes the masters can hold out much longer”.
Atiyah¹ argues that even in the zenith of classical contract law ideology, equality in bargaining power was nothing more than an elaborate fiction.
Against this background, contractors always complain that they are at the receiving end of a bad contract. That the contract is one sided as a result they suffer. Is this after all the case?
The Bid Documents
It is usual that project sponsors when inviting tenders or bids supply prospective tenderers with full documentation. The documentation so supplied contains full details of the basis of the contract upon which the successful tenderer will be required to enter into. Within these documents the form of contract and the particular conditions are also included therefore in order that surprises are not sprung on tenderers. Hence, contractors know what they are getting into when bidding a job. If a bill of quantities is supplied within the documents, it will usually contain a preliminaries bill which will provide for pricing all the risks contained in the conditions of contract and specifications. Most bid documents also contain blank pages for the bidder to include for any risks associated with the contract they might enter into if successful.
Most contractors do not price the preliminaries bill of quantities for fear of their bid being uncompetitive and as a result being lost. In a competitive world, this is fair. However, they cannot claim unfair contract terms as long as they know what they are bidding for and the terms upon which they are tendering.
Contractors’ Bargaining Power and Capacity to Negotiate
As far as building contractors are concerned, they have the capacity to bargain during their negotiations of the contract. Contractors however do complain that they do not have any capacity to negotiate in an open tender even more so where the award is based on the lowest tender received. Negotiations may be possible where the contractor is the only bidder or the competition is limited. In my opinion these complaints are unreasonable as in all circumstances there is complete transparency as to what the contractor will be getting into in submitting a tender as all the documents including the conditions of contract upon which the contract will be awarded is provided to all tenderers. In addition tenderers are given the opportunity to price their risks in the preliminaries bill of quantities. This is obviously a covert opportunity to ‘negotiate’. ‘He who prices the preliminaries bill of quantities wisely will succeed in winning the tender’. There is very little that a contractor can do when pricing the trade bills of quantities, because the cost of executing work described in the trade bills cannot be compromised, therefore the wisdom of correct pricing of the preliminaries bill of quantities cannot be over emphasised.
In defence of clients or project sponsors it is fair to say that the laissez faire theory and freedom of contract has not been compromised and no unfair advantage is taken on vulnerable contractors. Contractors have the opportunity to tender or not to tender. If they are forced by circumstances of business necessity, it is their own choice and the other party cannot force them to enter into a contract under any conditions they do not want to. Therefore the claim that contractors, are in disadvantage, while having some credibility cannot be sustained. Thus any claim that the lack of any bargaining power reduces the laissez faire principle in a construction contract to a ‘farce’ is unfounded.
The third part of this article will discuss some aspects of FIDIC Red Book that are relevant to this article “to claim or not to claim”.
¹ Atiyah, P.S, (2002), An Introduction to the Law of Contract, 5th edition, Oxford:Clarendon
We would like to wish all our readers a happy and prosperous Eid Ul Fitr. We apologise for the lack of activity on our site but we will be updating the site shortly with some new responses to some questions and a new article. Stay tuned!!!